Appeal by defendant from judgment dated 28 March 2002 by Judge
Robert H. Hobgood in Wake County Superior Court. Heard in the
Court of Appeals 3 March 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Edwin L. Gavin, II, for the State.
Bryan Gates for defendant-appellant.
BRYANT, Judge.
Kenneth Edward Watts (defendant) appeals a judgment dated 28
March 2002 consistent with a jury verdict finding him guilty of
possession of a firearm by a convicted felon pursuant to N.C. Gen.
Stat. § 14-415.1.
On 3 November 2001, members of the Raleigh Police Department
executed a search warrant at 120 North Fisher Street. 120 North
Fisher Street, a duplex unit, shared a common wall with 122 North
Fisher Street, and both halves shared a common porch, divided only
by a short see through railing, and a common yard. In order to
secure the premises and protect the safety of officers executing
the warrant, several officers were stationed outside the entire
perimeter of the duplex. Sergeant R.F. Holdsclaw was stationed near the kitchen door of
unit 122 North Fisher Street. Looking through an open door at unit
122, Sergeant Holdsclaw observed a tall, slim, black male wearing
dark clothing place some type of firearm on top of the
refrigerator. Sergeant Holdsclaw immediately radioed the other
officers, informing them that a firearm was present in unit 122.
Sergeant Holdsclaw then went into unit 122 through the open door
and seized the firearm. He, however, did not find anyone in the
apartment.
When exiting unit 122 through the front door, Sergeant
Holdsclaw found Detective G.K. Baker had detained on the front
porch a tall, slim, black male wearing dark clothing. Detective
Baker stated that nobody else had come through the front door, and
Sergeant Holdsclaw identified defendant as the person whom he had
seen placing a firearm on the refrigerator.
In his trial testimony, Detective Baker stated that around the
time the officers were first securing the premises, and prior to
detaining defendant, he saw defendant but was unable to determine
whether defendant exited unit 120 or 122. If defendant had exited
unit 120, the officers would have been required to detain him.
Neither Detective Baker nor Sergeant Holdsclaw was certain
whether defendant had any connection to unit 120, or whether
defendant posed a danger to the officers' safety. Therefore, they
continued to detain defendant and searched his person, finding a
pocket knife and a small amount of cash. Both defendant and the
seized firearm were taken to the police department. Defendant wassubsequently charged and later indicted for possession of a firearm
by a convicted felon.
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The issues presented are whether: (I) the seizure of the
firearm and detainment of defendant was justified; (II) the method
used to measure the length of the barrel was improper; and (III)
the trial court erred in excluding portions of defendant's
testimony.
I
First, defendant argues that police observation of a person
laying down a firearm in a residence, for which the police did not
have a warrant to search, did not justify the seizure of the
firearm and detainment of defendant. We disagree.
The governing premise of the Fourth Amendment is that a
governmental search and seizure of private property, unaccompanied
by prior judicial approval in the form of a warrant, is
per se
unreasonable, unless the search falls within an exception to the
warrant requirement involving exigent circumstances.
Robbins v.
California, 453 U.S. 420, 69 L. Ed. 2d 744 (1981);
Terry v. Ohio,
392 U.S. 1, 20 L. Ed. 2d 889 (1968);
Katz v. United States, 389
U.S. 347, 19 L. Ed. 2d 576 (1967);
accord State v. Allison, 298
N.C. 135, 257 S.E.2d 417 (1979);
State v. Cherry, 298 N.C. 86, 257
S.E.2d 551 (1979). Hence, when the State seeks to admit evidence
discovered by way of a warrantless search in a criminal
prosecution, it must first show how the former intrusion was
exempted from the general constitutional demand for a warrant.
Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685 (1969);
United
States v. Jeffers, 342 U.S. 48, 96 L. Ed. 59 (1951).
A reviewing court must consider the totality of the
circumstances in determining whether exigent circumstances exist.
State v. Guevara, 349 N.C. 243, 250, 506 S.E.2d 711, 716 (1998).
Each case turns on its own facts, and the court “'must consider the
scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in
which it is conducted.'”
State v. Watson, 119 N.C. App. 395, 399,
458 S.E.2d 519, 522 (1995) (quoting
State v. Smith, 118 N.C. App.
106, 114, 454 S.E.2d 680, 685 (1995)). In
Minnesota v. Olson, the
United States Supreme Court specifically found exigent
circumstances to exist when a situation involved a potential risk
of danger to the police or others located inside or outside of the
dwelling. 495 U.S. 91, 100, 109 L. Ed. 2d 85, 95 (1990).
In the instant case, police were lawfully present at the
duplex pursuant to a search warrant. As both halves of the duplex
were joined by a common wall, it thus required officers to be
stationed outside both sides of the duplex to (1) secure the
premises, (2) lawfully detain any persons attempting to exit 120
North Fisher Street, and (3) protect the safety of the officers
attempting to execute the warrant. Detective Baker saw defendant
on the premises but could not determine from which half of the
duplex defendant had exited. Defendant thereafter entered 122
North Fisher Street.
Sergeant Holdsclaw viewed through an open door, a tall, slim,black male, who was wearing dark clothing, walk into the kitchen of
122 North Fisher Street, lay some type of firearm on the
refrigerator, and then walk into the living room. Sergeant
Holdsclaw immediately radioed the other officers that a firearm was
present in 122 North Fisher Street, and proceeded into the unit
through the kitchen door to secure the firearm. Sergeant Holdsclaw
did not find anyone in the apartment. However, as Sergeant
Holdsclaw walked out onto the front porch, he found that Detective
Baker had secured defendant. Detective Baker stated that nobody
other than defendant had walked through the front door, and
Sergeant Holdsclaw identified defendant as the person whom he had
seen laying a firearm on the refrigerator.
During this time, other officers were in the process of
securing several persons found in 120 North Fisher Street together
with others stationed in a car parked in front of the duplex.
In weighing the facts and circumstances of this case, the
nature of the intrusion was justified by the need to secure the
premises and protect the safety of the officers executing the
warrant. Although the officers were unable to initially determine
whether defendant was spotted at 120 North Fisher Street or 122
North Fisher Street, if defendant had been present at 120 North
Fisher Street, he would have been subject to lawful detainment.
Furthermore, defendant's movement on the premises effectively
interfered with police efforts to secure the premises, and
defendant's placement of the firearm on the refrigerator justified
the officers' actions in detaining him and seizing the firearm. Moreover, the presence of numerous individuals stationed at
different positions in and around the duplex property (defendant in
Unit 122, others in Unit 120, and others in a car in the front of
the property) created a potential safety risk to officers executing
the search warrant. Accordingly, this assignment of error is
overruled.
II
Second, defendant argues prejudicial error occurred when the
barrel of the firearm was measured after an attached muzzle break
was removed, rather than being measured in the condition in which
the firearm was seized. Because N.C. Gen. Stat. § 14-415.1 is
silent as to the method that must be used in measuring a barrel,
defendant argues that the statute must be interpreted in his favor.
Special Agent David McAleer of the Bureau of Alcohol, Tobacco,
and Firearms (ATF) testified that, to determine the length of the
barrel, he removed the muzzle break and inserted a security strap
into the barrel, a method taught in ATF training classes. If the
muzzle break had been permanently attached, he would have included
the length of the muzzle break in his measurement - a technique
taught at the ATF training academy and is a generally accepted
method.
Our review of the transcript reveals that defendant presented
only one objection during Agent McAleer's testimony, and that
objection came after McAleer had already testified to the method he
used to measure the length of the barrel. Moreover, defendant
never moved to strike McAleer's testimony. Therefore, defendanthas failed to preserve this issue for appellate review.
See State
v. McCray, 342 N.C. 123, 127, 463 S.E.2d 176, 179 (1995) (“It is
well established that 'error may not be predicated upon a ruling
which admits . . . evidence unless . . . a timely objection or
motion to strike appears of record.'”) (citation omitted).
III
Finally, defendant argues that the trial court erred in
excluding defendant's testimony that the owner of 122 North Fisher
Street (Marco Bailey) had told defendant the gun was in the shop
being repaired. We disagree.
The transcript reveals the following colloquy between
defendant and defense counsel:
Q. Do you know whose gun that is, that rifle?
A. Marco's.
Q. Did you even know he had it in the house
that day?
A. No.
Q. Where did you think it was?
A. In the shop being repaired.
Q. Why did you think it was in the shop
being repaired?
A. Because the stock of the gun was broken,
and he told me that he was taking it to the
shop.
MR. WILSON: Objection, hearsay,
your Honor.
THE COURT: Sustained.
. . . .
Q. Mr. Watts, don't tell me what he said.
A. Okay.
Q. Just tell me where you thought the gun
was?
A. In the gun shop being fixed.
MR. RAND: Your honor, we would like
to offer the - - be heard on the assistant
district attorney's objection to hearsay if I
may. We're not offering it for the truth of
the matter asserted, only for my client's
state of mind of his belief of where the gun
was, not for the truth of the matter asserted,
that the gun would be - - was being taken to a
repair shop, just to show that my client
believed that it had been taken to a repair
shop. Since it's not the truth of the matter
asserted by the Court declaring whether or not
it was going to be taken, I argue that it does
not qualify as hearsay.
THE COURT: The objection remains
sustained.
Defendant argues the excluded testimony explains the reason he
thought the firearm was being repaired, yet he fails to offer how
the excluded testimony explains his reaction or state of mind upon
receiving the information. The state of mind hearsay exception
does not apply for the reasons defendant advocates.
Further, because defendant was allowed to testify he thought
the firearm was in the repair shop, he fails to show prejudice by
the trial court's exclusion of testimony concerning
why he thought
the firearm was in the repair shop. This assignment of error is
overruled.
No error.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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